The Supreme Court has reserved its decision in the State’s appeal concerning the legal burden of proof placed on a defendant seeking to establish they were reasonably mistaken about the age of a child with whom they are accused of engaging in a sexual act.
The appeal primarily concerns the extent to which, if at all, the prosecution must prove the accused had a “guilty mind” regarding the age of the child.
The High Court last June struck down a section of the 2006 Criminal Law (Sexual Offences) Act that required an accused invoking the defence that they were “reasonably mistaken” about the minor’s age to convince a jury that this was true “on the balance of probabilities”.
It was unconstitutional, ruled Ms Justice Siobhán Stack, to impose more than an evidential burden on an accused in an issue that concerns a core element of an offence. An evidential burden would lead to an acquittal if the jury had a “reasonable doubt” that the accused had not been reasonably mistaken about the age, she noted.
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The plaintiff in this case was convicted of the offence of engaging in a sexual act with a person under the age of 17 and was sentenced to one year and 10 months in prison. The events giving rise to the criminal trial took place about five years ago when the man was 19 years and four months old and the complainant was 15 years and 10 months.
On Wednesday the State’s senior counsel, Remy Farrell, told a seven-judge Supreme Court that an accused could be convicted of this offence despite being mistaken about the age if this mistake was unreasonable.
The mental intent of an accused regarding age is “in the mix” but it is not an element of the offence itself, he added.
If the Supreme Court rejects, as the High Court did, the State’s contention that this is not a constituent of the offence itself then the question arises of whether this burden shift is justified, said David Fennelly BL, who was also representing the Minister for Justice, the Attorney General, the Director of Public Prosecutions and Ireland.
The Oireachtas, he said, is “not absolutely precluded” from transferring the legal burden on to an accused in relation to an element of the defence, but it uses this power “very sparingly”.
“We recognise that this [subsection] is at or near the limits of what might be permissible under the Constitution,” he added.
This reversal is justified for this particular offence, Mr Fennelly went on. He pointed to the State’s duty to protect and uphold constitutional rights, a duty which he said is “heightened” when it comes to a child. It is “very difficult”, he said, for the prosecution to prove an accused was not reasonably mistaken as to age.
Ronan Munro SC, for the plaintiff, submitted that the issue being examined is a “core element” of the offence, to which significant social stigma and legal consequences are attached. The prosecution should have to prove beyond a reasonable doubt that an accused’s mind was “guilty” as to age. He said a “mentally innocent” person accused of this offence has “only one escape route”: the reasonably mistaken defence.
The presumption of innocence is violated, he said, when this defence cannot succeed by simply creating a reasonable doubt in the jury’s minds about the awareness of a child’s age. This Rubicon “cannot be crossed” as the mentally innocent need a way out, he added.
Fiona Murphy SC, also for the plaintiff, said there is an objective element to the reasonable mistake defence that sets a “high test”. It is difficult to see how an evidential burden would not be sufficient in these circumstances. It is not permissible, she said, to have an offence where there is no possibility of an acquittal.
The case was heard by Chief Justice Donal O’Donnell, Ms Justice Elizabeth Dunne, Mr Justice Peter Charleston, Ms Justice Iseult O’Malley, Mr Justice Séamus Woulfe, Mr Justice Gerard Hogan and Mr Justice Brian Murray.
The court reserved its decision.
